The PTAB Shake-Up One Year Later

Over the past year, the U.S. Patent and Trademark Office (USPTO) has dramatically reshaped the inter partes review (IPR) landscape. Former Acting Director Coke Morgan Stewart the process by expanding the role of discretionary denials, including introducing a new bifurcated process in which discretionary factors would be considered separately by the Director. Newly confirmed Director John Squires then , assuming a direct role in institution decisions, including on both discretionary and merits-based grounds.

A year later, an important question is how these changes are affecting litigation strategy for both patent owners and patent challengers. For more than a decade, patent owners could generally assume that an asserted patent would face an IPR challenge and that a reasonably strong petition had a good chance of institution, creating a substantial risk that the district court litigation would be stayed. That assumption is no longer reliable. The USPTO’s evolving approach has introduced significant uncertainty into the institution process, creating new opportunities for patent owners to avoid PTAB review altogether, even as challengers increasingly shift toward the generally more patent-owner-friendly ex parte reexamination process.

New Procedures are Changing Behavior

The impact of the USPTO’s recent policy and procedural changes can be seen not only in institution rates, but increasingly in filing behavior itself. By June 2026, the USPTO reported 509 discretionary denials and only 314 instituted petitions so far this year, resulting in a reported institution rate of just 38%, down from 50% in FY2025 and 68% in FY2024. The data suggests that discretionary review is no longer a peripheral consideration but has become a principal determinant of whether many petitions will ever reach a merits review.

Perhaps more telling is the apparent effect these changes have had on the willingness of accused infringers to file IPR petitions in the first place. The USPTO reported 1,250 IPR filings in FY2024 and 1,361 filings in FY2025. Through the first nine months of FY2026, however, only 355 IPR petitions had been filed. A simple annualization yields roughly 475 IPR filings for the fiscal year—less than 35% of FY2025 filing levels, although the declining monthly filing pace suggests the final number could be lower if current trends continue. Although many factors undoubtedly influence filing decisions, the combination of expanded discretionary review, increased uncertainty regarding institution and the growing use of summary denials appears to have materially reduced the attractiveness of IPRs as a routine defensive tool in patent litigation.

The decline in IPR activity does not necessarily mean that patent challengers have abandoned USPTO validity challenges altogether. Recent data suggest that many are increasingly turning to ex parte reexamination as an alternative. According to , ex parte reexamination filings increased dramatically following the USPTO's restrictions on IPR institution. RPX reported 254 reexamination requests in Q1 2026, a 189% increase over the same quarter in 2025, followed by 315 additional requests in Q2 2026, a 160% year-over-year increase. Recent reporting citing a Unified Patents study suggests that the trend has become even more pronounced, with the USPTO now receiving more requests for ex parte reexamination than petitions for IPR or PGR review.

But while reexamination provides another avenue for challenging patent validity, it lacks many of the procedural features that historically made IPRs the preferred administrative challenge, including a statutory schedule and a meaningful role for the challenger after the initial request is filed. As a result, the shift from IPRs to reexaminations does not eliminate USPTO validity challenges; it changes their character. Patent owners still face administrative review, but challengers must increasingly rely on a less adversarial process that offers fewer opportunities to shape the proceeding once it begins.

Ultimately, the most important consequence of the USPTO's reforms may be that they have made the path for resolving patent validity less predictable. Patent owners and challengers alike now face a wider range of possible outcomes, from discretionary denial, to ex parte reexamination, to district-court adjudication. As a result, USPTO strategy, venue selection and litigation timing are becoming increasingly important from the outset of a dispute.

Why it Matters

• The evidence reflects a significant decline in IPR filings accompanied by a sharp increase in ex parte reexamination requests.
• The increase in reexamination filings suggests that many challengers continue to view USPTO validity proceedings as worthy pursuits notwithstanding the ex parte nature of reexamination and the challenger’s limited role after filing.
• Patent owners benefit from the ex parte nature of reexaminations, but venue selection remains important because the available data suggests that courts grant stays pending ex parte reexamination at rates comparable to stays pending IPR. Moreover, because reexaminations are not subject to the statutory deadlines that govern IPRs, any resulting stay may last substantially longer.

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